Bronson v. Silverman, No. 48

No. 48 | Pa. | Jan 4, 1875

Mr. Justice Merour

delivered the opinion of the court,

The rule of court under which this judgment was taken requires “ an affidavit of defence in which the nature and character of the defence shall be clearly and specifically stated.” This, then, imposed on the party making it, the necessity of averring with reasonable precision and distinctness, facts which, if true, would constitute a defence. It does not require'a statement of the manner in which those facts will be proved, nor of the evidence by which they will be substantiated. It is presumed they will be proved according to the rules of law and the practice of the court.

In this case the affidavit clearly avers facts which put the plaintiff on no higher ground than the original holders. It declares that he took the note with full knowledge of the consideration and circumstances under which it was given, that he paid nothing for it, and holds it for collection only.

The question then is, does the affidavit exhibit- a defence against the original holders? It avers, substantially, that the note was given for part of the purchase-money of land, and that the payees were to make, execute and deliver to him a written contract as his title thereto, but that they have never delivered it as agreed, and that he has no written evidence of title to the land nor of his contract. It is contended on the part of the defendant in error that this is insufficient, inasmuch as it omits to state where the land is located, and does not aver that he has not obtained possession of the land. To this it may be answered, that, as the contract set forth in the affidavit avers no agreement to give possession, prior to the execution of the written agreement, there is no presumption of law that it was given. Wherever the land lies, the agreement was to furnish written evidence of title. This is the specific contract averred, and a breach of it is affirmed. ' It is true no specific time is stated when it was to be delivered, yet it is averred that it has not been delivered as agreed. The time then agreed upon for the delivery had passed. It was their duty to deliver it according to their contract. It was not incumbent on him to demand it. As evidence of his title, the written instrument would be of great value to him. The deprivation of it might work him great injury. Re that as it may, it was an indivisible part of the agreement which entered into the consideration for which the note was given.

We think, therefore, the learned judge erred in entering judgment for want of a sufficient affidavit of defence.

Judgment reversed, and a procedendo awarded.